Here Today, Gone Tomorrow: The Uncertain Position of EA Nationals

Danielle Cohen Solicitors wish to draw your attention to the uncertain position of EA nationals and their family members living in the UK following the result of the EU referendum on 23rd June 2016. Are EU nationals really meant to be here today gone tomorrow? There are more than 3 million EA nationals who need to apply to confirm their status under whatever transitional provisions the Government will put in place and many of our EA national clients now seek to protect their own immigration positions as best they can. As a result they are applying in much increased numbers for Home Office documents to confirm rights of residence and permanent residence in the UK. We do recommend this course of action, but there are problems with the way these applications are being processed and decided by the Home Office already. With application numbers only growing, significant issues will follow.

Until the Brexit vote many EA nationals living in the UK had no contact with the Home Office. Nor did they have any awareness of the fact that in order to acquire permanent right to reside in the UK, they must live in here continuously and lawfully. It is understood that EA nationals are able to enter and leave the UK without the requirement of a visa. They are not required to register with the Home Office, and are able to work and access services on the production of a passport or national ID card. In practice, the only EA nationals who had to demonstrate that they were exercising treaty rights in the UK were:

• Those who non EA family members who may have sought to join and remain with them in the UK
• Those who had sought to claim benefits
• Or those who have been subject to exclusion or expulsion on grounds of criminal conduct. So the vast majority have just lived in the UK.

Those who have been required to show they have a right to reside here, had to satisfy the requirements of the Home Office approach to meeting and evidencing EU requirements. Those requirements are complicated and in some cases contested.

As of January 2015, a new set of application forms were introduced. These forms are very long and request voluminous amounts of information – the current EEA (PR) form is 85 pages long! There is extensive documentation requirements and while the relevant application forms are not mandatory, many EA nationals and their family members using them are unaware of this and find the forms extremely difficult to follow.

The Home Office require original documents to be submitted with all applications including those dating back many years, as well as original passports or national ID. In our experience the extent of documentation submitted by applicants and the complexity of the legal framework, often supplemented by case law and the lack of sufficient Home Office experience in some case working teams, means that EA residence document applications are not processed quickly and sometimes are even subject to unnecessary appeals which are expensive and time consuming. Bearing in mind that many people never anticipated the need to confirm their residence rights, some of them find it difficult to collate the relevant documents. Employers may no longer exist, Bank accounts may be closed, HMRC records may not date back far enough.

Third country nationals are continuing to face suspension or dismissal from their jobs and are unable to provide their employers with the evidence of their right to work in the UK. This is despite the fact that family members are able to work in the UK by right under EU law. The situation has worsened since the introduction of biometrics on 6th April 2015, which has added an additional stage in the process, bringing further delays. The same problems arise in relation to the right to rent provisions where third country national family members can be threatened with redundancy or being refused tenancy due to delays in processing the EEA applications or returning documents. One further risk following the Brexit vote is that the landlords and employers will start to take a cautious approach to employing and letting private property to EEA nationals and their family members.